Seeking Refuge

Humanitarian activists claim the feds are playing bureaucratic shell games

Dan Millis: "It's probably not worth it to be chasing humanitarian volunteers around and spending thousands of dollars prosecuting them."

Two years ago, it seemed that the relationship between humanitarian activists and the managers of the Buenos Aires National Wildlife Refuge couldn't get much worse.

It didn't. But today, despite a stunning court reversal and a much-trumpeted policy shift, humanitarian groups argue that the relationship hasn't gotten any better, either. Instead, a bitter struggle between the U.S. Fish and Wildlife Service and the Tucson-based group No More Deaths—over placing 1-gallon water jugs on the refuge—slogs along.

Last year, 13 volunteers were cited in a single day, after leaving water jugs along migrant trails. Before that, two activists wound up involved in costly court cases, and were ultimately convicted for littering.

One of those convictions, of No More Deaths volunteer Dan Millis, was overturned on Sept. 2, when the 9th U.S. Circuit Court of Appeals ruled that water bottles placed on the refuge for thirsty migrants were not garbage. Dissenting in the 2-1 decision was Judge Jay Bybee, a George W. Bush appointee most notable for stitching together a legal justification for torture while at the U.S. Justice Department.

Millis was surprised by the reversal. "As far as this verdict goes, it's pretty good news," he says. "It gives the federal government some indication about where they should be putting their efforts. It's probably not worth it to be chasing humanitarian volunteers around and spending thousands of dollars prosecuting them."

However, the court decision may not change much. For one thing, the decision was quite narrow, focusing specifically upon the definition of "garbage," and reflecting that any number of laws could be used for future citations. For another, wildlife refuges are managed under the U.S. Fish and Wildlife Service, and according to agency spokesman Jose Viramontes, his agency's policy toward the 1-gallon jugs favored by No More Deaths has not changed.

"There are a number of things a person could be cited under, not just littering," Viramontes says. "It could be trespassing. It could be operating without a permit. It could be abandonment of property. While we don't want to ever go down that road, there are other mechanisms."

Viramontes also refers to his agency's recently released "compatibility determination." The lengthy report concludes that more water stations along established refuge roadways would be allowed. For nearly a decade, the Tucson group Humane Borders has been permitted to operate three such stations, with 55-gallon containers, on Buenos Aires.

But the 1-gallon jugs viewed as critical by No More Deaths would still be forbidden. The activists argue that the smaller containers can be placed where they're more likely to be found by migrants, and that they retrieve far more of the containers and other trash than they ever leave behind.

They were given a bum steer, they say, after months spent negotiating with former refuge manager Mike Hawkes—and even reaching a tentative agreement to tether the jugs to trees.

Before recently retiring, Hawkes was known for his belligerent stance against the activists, even mocking the No More Deaths slogan—"Humanitarian Aid Is Never a Crime"—with bumper stickers that read, "Littering Is Always a Crime." Referring to No More Deaths, Hawkes told The Washington Times, "They've become just as much of a problem as the illegals."

In the end, however, it was Hawkes who sat down with the group's representatives to hammer out a deal. Attempts to contact the former manager were unsuccessful. But the Rev. Gene Lefebvre, a No More Deaths co-founder, believes the decision to abandon those talks came from the Fish and Wildlife's regional offices in Albuquerque, N.M., or perhaps even from Washington, D.C.

"I'm really fed up with the situation, because I think we've got a huge disaster on the borderlands," Lefebvre says. "And people are either in denial, or they're playing bureaucratic games. Dan's conviction for littering was absolutely absurd. The court did realize that in a way, and said he was not guilty. Of course, it's now open for bureaucrats to go on and find other reasons to arrest us."

But Viramontes says the use of 1-gallon jugs remained on the table until the final "compatibility determination" report was nearly complete. "Really, what we were looking at is the environmental impact—and was there a way that we could allow (the 1-gallon jugs) so that it's consistent with the purposes of the refuge?"

After sifting through more than 1,000 public comments—half of which opposed placing any water on the refuge, Viramontes says—and considering such issues as public safety, "in the end, we determined that the 55-gallon-jug approach is the best way to provide water to the refuge."

The compatibility document also raises concerns about the "cumulative" impact of activity on the refuge, from migrant foot traffic and volunteer efforts to actions by the scores of Border Patrol agents who crisscross the preserve 24 hours a day. It argues that placing water jugs on the Buenos Aires could help draw more illegal traffic.

Activists such as Lefebvre dismiss that notion. The volunteers also contend that the Border Patrol, with its trucks and ATVs, inflicts far more damage on the refuge than they ever could.

Viramontes concedes that the Border Patrol presence is heavy. Still, he contends that agents are now given environmental "sensitivity training," and required to file reports whenever they veer into roadless areas. Nonetheless, parts of the refuge resemble a trash-strewn war zone.

Underlying this tragic situation is the Border Patrol's own strategy, which is to push illegal traffic into remote areas such as the Buenos Aires. They spin thick enforcement webs around towns like Nogales, Sasabe and Douglas, thereby forcing crossers out into the desert, where they're supposedly more easily caught.

In an earlier interview with the Tucson Weekly, former Tucson Sector Chief David Aguilar—who would go on to head the Border Patrol—explained that the strategies were meant to block known smuggling routes. Before, smugglers would "take advantage of the infrastructure available to them, beginning in Mexico," he said. That infrastructure "translates into highways from the interior of Mexico to the border."

Now those pathways simply traverse the interior of precious preserves such as the Buenos Aires.

Meanwhile, the migrant death count continues to rise—nearly 200 bodies were found in the desert just this summer—and the federal government continues to make giving them water in 1-gallon jugs a crime.